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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Woodward & Anor v Phoenix Healthcare Distribution Ltd  EWHC 334 (Ch) (16 March 2018)
Cite as:  EWHC 334 (Ch)
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BUSINESS AND PROPERTY COURT
BUSINESS LIST (ChD)
Rolls Building, Fetter Lane
London EC4A 1NL
B e f o r e :
| (1) Sally Woodward
(2) Mark Addison
|- and -
|Phoenix Healthcare Distribution Limited
Andrew Onslow QC and Hannah Glover (instructed by Mills & Reeve LLP) for the Defendant
Hearing date: 16th November 2017
Crown Copyright ©
1. This is an addendum to my judgment in this case.
2. After my draft judgment had been sent to the parties and while arrangements were being made for handing down, I was informed by Counsel for the Defendant that the Supreme Court had handed down its judgment in Barton v Wright Hassall LLP  UKSC 12 and I was asked to reconsider my judgment in the light of that decision, having particular regard to the fact that Barton, in the Court of Appeal,  EWCA Civ 177, was referred to, quite extensively, in my judgment.
3. I have now had the opportunity to consider the decision of the Supreme Court, together with a helpful note prepared by Counsel for the Defendant, and, having done so, I see no reason to change, or modify, the conclusions that I have previously reached.
4. In my judgment, I characterised the Court of Appeal decision in Barton as being one of a number of cases where validation under CPR 6.15 had been refused upon the primary basis that, although de facto service had been effected, there was nothing other than de facto service to constitute good reason for validation. The majority decision in the Supreme Court seems to me to bear this out. The fact that the claimant in Barton was a litigant in person did not, in the view of the majority, provide a sufficient additional factor such as to give rise to a good reason for validation. Likewise, on the facts and on the very limited arguments deployed (see paragraph 22 of the Supreme Court judgment in Barton) the conduct of the defendant's solicitors, in that case, did not amount to the playing of technical games.
5. It is true that Lord Sumption, giving the majority judgment, took the view that the solicitors in Barton were not, even had they had the time to do so, under any duty to advise the claimant of his mistake as to service. The Supreme Court, however, was not asked to consider and did not consider, as I have been asked to, any developed argument, as to the impact and effect of the duty to further the overriding objective, as giving rise to a duty to the court to warn an opposing party of his, or her, mistakes. I do not regard the majority in Barton (and I do not think that the majority in Barton would have regarded themselves) as having given a definitive, or any, answer, in respect of that argument.
6. It is true, also, that, in endorsing the principles to be derived from Abela, Lord Sumption gave, it might be said, new, or greater, weight to the fact that validation might deprive a defendant of a limitation defence than has, perhaps, emerged from the earlier authorities. He was, however, at pains to say that the point was not, necessarily, decisive. As explained by Lord Briggs in his dissenting judgment, the point can, indeed, be put the other way; namely that, in a case where the de facto service fulfils all the objectives of good service, a refusal to validate may provide the defendant with a windfall.
7. In the current case, I consider that the de facto service effected by Collyer Bristow did fulfil all the objectives of good service (see, in particular, paragraphs 83 and 99 of my judgment and paragraphs 28 to 30 of the Supreme Court judgment in Barton) and that, to the extent that something additional is required in order to give rise to a good reason to validate, then that good reason was provided by the failure of Mills & Reeve, contrary, as I find, to its, or its client's, duty to further the overriding objective, to warn Collyer Bristow that its purported service was defective, such that good service could have been effected in time. It was that failure which constituted the deliberate playing of a technical game.
8. As I set out in my judgment, I do not think that the undoubted culpability of Collyer Bristow, in overlooking the fact that Mills & Reeve had not indicated that it had authority to accept service, outweighs Mills & Reeves conduct, in failing to draw Collyer Bristow's attention to its mistake. Had Mills & Reeve acted as it should have done, Collyer Bristow's mistake would not have precluded good service being effected in the lifetime of the Claim Form.
9. For the same reason, I do not think that, in this case, the fact, that validation will, or may, deprive Phoenix of a limitation defence, should preclude validation. Had Mills & Reeve acted as it should have done, good service would have been effected in time. In that context, validation does no more than to preclude Phoenix from procuring a windfall.
10. In the result and as set out in my judgment, I will order that the steps taken by Collyer Bristow in purported service of the Claim Form stand as good service.
11. I have already indicated to the parties that, because of the weight I attach to the duty of Mills & Reeve and its client to further the overriding objective, by drawing Collyer Bristow's attention to its mistake, because, also, of the conflict of authority on the point and because, as it seems to me, an important point of practice arises, I will give permission to appeal. I am, subject to the views of the parties, minded to assign the appeal to the Court of Appeal, pursuant to CPR 52.23.